Mial v. Ellington.

1903. TERM, O.] Ellington. Mial v.

MIAL v. ELLINGTON.

(Filed 1903). 1, December

OFFICERS—"Vested Assembly H. Interest —Contracts—General —Const. C., IV, Code, Art. 38—The sec. sec. appointed

An officer for a a legislative definite time to- has no vested property therein or legis- contract thereto of which 1, deprive Henderson, C., lature cannot Hoke him. 15 N. over- ruled. Clakk, J., concurring. C.

Montgomery JJ., dissenting. and Douglas, A. T. Mial J. by C. against others, Ellington

AotioN beard BrB. by Peebles at Judge July Term, 1903, Court of Wane Superior County.

This is a civil action in the of a tried nature warranto quo upon facts: At session of Pub- agreed following Laws, lic an act was “An act chapter entitled, passed pro- an alternative method viding constructing keeping roads repair public Township, Raleigh County.” Wake It was said provided act that the by justices the peace should meet Raleigh and, if a so Township decided, majority the method of adopt roads keeping repair public said in accordance with township act; of said provisions that when so had the said it was said adopted method, made act Commissioners at their duty County regu- lar thereafter to a meeting biennially appoint supervisor of roads for said hold township; said should supervisor his office for two event of years; vacancy should filled said Board of Commissioners. Pro- same vision was made for removal for cause notice. Said the oath of office supervisor required qualify by taking in an amount to be bond fixed board. The giving duties for said were that prescribed supervisor should for- he permanent plan improvement mulate the IN THE1 SOPEEME COUNT'. Ellington.

Mial of roads said of of the township city outside Naleigb by the use of the labor of convicts and work-house county bands, etc. He was to disburse all funds to required bim the paid upon warrant of the Commissioners for the of County car- purpose out the of the act and to rying provisions said an account keep of well as list all thereof, etc., his and tools, possession, to make a thereof to the report Commissioners. The duties of the said in all other supervisor respects specifically were out in pointed the several of sections act. His compen- said sation was to be fixed Board of Commissioners, the the was same not to $150' exceed annum. Pursuant to per the of said the provisions method for act, therein prescribed the of roads was Raleigh Township adopted duly jus- tices of and a elected. At peace supervisor the ses- duly sion of Public Laws, the maximum limit 1891, chapter 218, of salary was fixed at supervisor $1,200. At the session of P'ublic 434, the of 1897, Laws, chapter provisions said act were three extended miles limits beyond the present of in each Raleigh Township direction.

That at Bbard of regular Commissioners meeting of Wake held in Har- County, December, 1902, Bryant one rison was appointed said by the board Supervisor Roads of for a Raleigh term of two Township commenc- years, 1903. That the said ing January fixed 1, his board salary $70 and that per month, the said Harrison duly qualified and entered upon of his duties as discharge such officer.

That at the Board of February said C'omission- meeting ers the said Harrison the said resigned to take effect on March 1, 1903, thereupon board said accepted the and called a resignation special to be on meeting held Febru- 1903, ary 21, successor. appoint That at said special A. T. meeting relator, Mial, was duly to fill appointed out said term and unexpired his fixed at salary $70 per month. That he subsequently gave took required bond, O.] V. ELLINGTON. tbe oath of office inducted therein and entered duly duties as such officer. discharge

That at the session the General enacted Assembly chapter “An entitled, act act improve public roads of Wake said act it was County.” By provided the Board in order pro- Commissioners County Wake, vide mainte- proper improvement and construction, nance before roads shall on or county, elect a January 1, 1904, of roads for superintendent who shall hold office until until county, December, 1904, his successor has been at their regu- elected qualified, lar in December, and meeting thereafter,' biennially shall a successor to said office. The they elect superintendent of shall roads be such as shall be fixed by paid compensation said board out for fund, of the road and office hold county two and until his successor been years has elected and quali- * * * fied. It shall be the of said superintendent duty of to the of roads, Board Commis- subject approval the sioners, direct the mainte- supervise, charge and nance and of all he public roads the and building county, shall submit Board of a monthly Commissioners County the work in ex- the report moneys and concerning progress and he shall submit a on the con- pended, report quarterly im- dition roads and for their and bridges plans Board of divide That the Commissioners shall provement. into road three be Bal- known as the county districts, the Northern and the Southern Hoad Districts, respect-

eigh, The ively. boundary Bead District shall Raleigh circle, of a radius of ex- circumference which shall tend miles from the eight Capitol city building, and other direction; Baleigh, boundaries every shall districts be fixed the Board of Commission- County said ers, and board shall have to create new road dis- tricts whenever in their there is for the opinion necessity same, IN THE SUPREME COURT. V. ELLINGTON.

and to alter the boundaries except Raleigh any district, District, consider it advisable. For Road when they may shall each of the road Commissioners districts County herein for election of road at the time prescribed elect, who for a district shall hold office supervisor, superintendent, until the same and in same manner that he and term holds, Each their successors are and supervisor elected qualified. bond in for the faithful $1,000 shall sum give perform- accounting all for of the duties of his office,the truthful ance of all into his and the care moneys coming possession proper tools and entrusted wagons, implements teams, machinery, - furnish mate- shall inventories such they charge every nature rial, and utensils tools, implements,-machinery upon and that shall come into their hands their entrance upon from retirement shall be such office; compensation paid shall be fixed the Board of County Commissioners, for removed from manner may be the same provided road superintendent. shall each Commissioners furnish County supervisor with a outfit of complete carts, teams, machinery, implements, tools him the roads of his district, utensils use be- now tools, machinery, implements to the Road District shall not be used upon longing Raleigh the roads of shall be for the other district, kept exclu- sive use of that district.

The work of in each shall under district supervisors the of and the direction control of and superintendent roads, the shall conform to directions and the faithfully require- of shall be ments this act. kept employed There continuously roads of each district a of not fifteen the less than squad hired whose shall be the Board fixed hands, compensation by of Commissioners.

That the of of Commis- at the said regular meeting Bbard sioners the said board caused 1903, held April, (cid:127) 1903. N. O.] Ellingtoh.

Mial *. of the said meeting that at the regular May notice be given three and of roads for Wake County board superintendent of said county road districts for the supervisors respective Laws chapter 551, would be eleced said under said board, the of said said meeting and 1903, pursuance May notice J. O. Elling- Board of elected defendant Commissioners de- and the ton of Loads for Wake County, Superintendent Load Dis- for fendant Jones Supervisor Baleigh Alfred B,. I. A. Holloway Supervisors and N. and Bailey trict, County, of Wake Southern Bo Districts the Northern and ad a can- was not A. T. That the Mial, respectively. relator, That the for either of these positions. didate applicant to the Jones, Alfred prior J. C. and defendants Ellington the oath bond and took of action, gave commencing the said of them of did all other acts and required 12th of May, on the day of act March Thereafter, 6, of Board defendants, of the order under 1903, acting took said J. 0. Ellington Commissioners Wake County, effects belong- and other and of the teams possession rela- in the and then custody Township ing Baleigh in the absence aforesaid, T. virtue of his A. tor, Mial, by 12th on the said consent; Mial without his said Board of Commissioners the defendants, day May and officers all the withdrew convicts, guards County, Wake of Baleigh the roads and which worked upon in their custody, had A. T. Mial, super- over whom the relator, Township, and supervision them under the charge placed vision, on thereafter, May said That J. O. Ellington. defendant to him return T. demanded the Mial, A. 12, 1903, relator, con- also control effects, of all said property was refused and that same and officers, victs, guards Board 1903, That at the said meeting, May defendants. of the said of Wake County, pursuance

of Commissioners the Northern fixed boundaries of March act THE IN SUPREME COURT. V. ELLINGTON. and Southern Road Districts of the boundaries County, Wake the said Road District been fixed Raleigh having by act, included the within territory formerly Raleigh under the act 1899 and all acts amend- said Township, also included addition certain atory thereof, territory thereto. Court, upon rendered foregoing agreed facts, judg-

ment for the the relator defendants, and appealed.

Battle & Mordecai Womack & Hayes, plaintiff. . B. M. for the defendants. Gatling, CONNOR,J. We no in the decision of disposition this case to the conclusion to we have arrived place which upon ground position supervisor roads, to which inis is not title office. controversy, public Adopt the settled definition of a we ing that the officer, hold comes position within such definition. clearly Nor we to efiter into discussion of disposed and deli many fine cate distinctions which have been between the validity made of an act which distributes the of an officeand duties onewhich abolishes tire office. We rather to discuss and decide prefer question, whether fairly presented record, by an officer for a appointed definite time to a office legislative has vested interest or contract such office which, cannot him. Legislature The conten deprive tion of the relator is based which was proposition Henderson, decided this Court in 15 N. Hoke C., 1, which is thus stated G. J.: “The sole by Ruffin, inquiry remains is whether the of which the act Mr. deprives Henderson is It is to make the property. scarcely possible clearer to' a proposition mind, plain accustomed to regard results than things practical according realities, it. For what barely do we stating what property; is, ? understand term It in reference means, the thing, C,]N. TERM, 137 .1903. V. EMJNGTOW.

MlAl whatever a can person possess and, enjoy by right; reference to he who has that to exclusion person, the right the of others is said to have That office is the property. well

subject thus is understood explained by every as one, well as stated in the law books from distinctly earliest times. office An is enumerated commentators on by hereditaments; law and is among incorporeal defined be exercise or right enjoyment public private take the fees and thereunto A emoluments belonging. public been has be this: when man is well described spec- one set to do by another’s business ially law, compellable his will and demand against without can there- leave, for such or fees law is way as by salary by compensation to the no other which business but assigned; doing person or one officer, This deputed competent.” by him, legally was stated main- proposition Chief Justice and great tained in an elaborate December opinion Term, of this Court. That has been with cited approval frequently with some cannot be and, followed exceptions, Court, denied; nor can it be denied that has successfully always there been a number the ablest members of Bar in North Carolina, who its soundness. have questioned view is thus on contrary J., stated Con- by Sanford, York, ner v. New Sanford’s 370: “We City Reports, think it must be that is no assumed there contract, express between a officer and the whose implied, public government he is. The latter no enters into shall agent he agreement receive for the time shall hold particular compensation a'ny he in the office; nor, office,that officeitself statutory case shall continue Constitution any definite period. Where limits the it is compensation control; beyond legislative no that makes contract. The in their people control, as the has in offices. sovereign Legislature statutory capacity, It is not whether fees question earned salary may THE, SUPREME; COURT. IN

Mial v. Ellinston. fees be conceded Tbe to receive such divested. inquiry.” Avithout affecting present perfect, Fuller, J., thus C. Beckham, 118 U. S., 577, Taylor deci states law as held and enforced Court: “The are mere offices sions numerous to effect as such. Nor are the trusts and not property and agencies but com secured by contract, and salary property, emoluments fact rendered. Nor does the for services pensation actually abolish from a the that Constitution forbid may Legislature during a or the thereof salary ing public office, diminishing make it its or the term of character the incumbent-, change the the limit of Legis restrictions the power property. Time, may lature but even such restrictions to deal with office, the amendment. short, gener removed constitutional by to relation of officer the nature of the ally speaking, public or a contract is inconsistent either a the with property right.” im

We two views this most upon have thus the presented with the necessity and are confronted portant Ave question, Hoke of which either or theory upon the overruling rejecting cited is based which is stated in the cases Henderson that the the to what be called American doctrine in respect will officer bears to State. It relation which the public the save confusion or to say any possible misunderstanding of us to the power Legislature said by regard nothing These offices for Constitution. -the applies provided either affect, power Legislature beyond fixed, to the term within limitations respect or, except This, because there is salary. any property right made in their Constitution office,but because the people for their terms salaries. provision regulated in this behalf of the on appeal involved proposition created thereof, neither an or the duties plaintiff the term act- of Legislature, fixing compensa- O.] V. ELLINGTON. can be transferred to other tion, some affected dur- person term ing which the incumbent has been elected; such office is within the of the constitu- property protection tional that no shall be of- provision person deprived prop- erty due except and that no shall process law, pass State law of a contract, impairing obligation which, excludes take course, Legislature from man and one it to another. give

We that we shall recognize gravity proposition reverse a decision this delivered Justice Court, by Chief Qaston, with the Ruffin, Justices Daniel approval which we concede has received unanimous approval this in a Court number of and a thereof majority cases, others. If the title many were question involving decision of have been property, property rights settlements acquired, been and the security have made, of families was peace we feel it our duty dependent, should to leave it the to to of the Government legislative department the law into with and the bring sound best harmony principle experience in we live. thought Being, the which age however, constitutional law, the question p-ublie involving if it is that the State, to sovereignty appear prin made which v. ciple upon Hoke Henderson is founded stands with

out in reason and is unbroken support opposed uniform, the current of in be both and Federal it authority Courts, State comes our overrule our duty place jurisprudence with that of the line other States the Federal Government. Wilson,

It is said Jin Caldwell v. C.,N. by Douglas, “with it is the well- that, State, the exception in the settled doctrine United States that office is under a or held within the regarded general grant contract, constitutional the provision contracts; unless protecting but, Constitution otherwise expressly provides, Legislature or or has to increase power salary diminish vary duties, 140- IN THE COURT. SUPREME Ellington.

Mial or abolish or other to the compensation appurtenant or term, of its before the end rights privileges * * office itself. alter or or to abolish the abridge term, is no it is well there North settled that Except Carolina, officer either between a contract, express implied, public nor can and the Government whose a public agent is; he be incumbent.” as the regarded deem it in view of conclusion to which we

We proper, have at some prin- review length elementary arrived, involved authorities States. ciples United Freeman, It is stated Mr. note to v. Hen Hoke derson, 25 Am. to tire “With all 104, that, deference Dec., North Carolina the conclusion with Courts, may yet drawn, be Mr. that ‘It be as a set therefore, considered Pomeroy, may, tled of constitutional settled point the National law, both and State Courts, that office bears no resemblance to public a contract; and that full over the Legislatures offices of a Commonwealth, so far as except they may restrained local constitutions. clause of United States Constitution State laws prohibits impair of contracts has ing no whatever to obligation application ” this subject.’ Marshall, Justice Dartmouth Woodard College, Chief said: “Public inhibi Wheat., offices are not within the tion Constitution of im the United laws States against the inhibition does pairing obligation contracts; not extend to offices within a State State purposes; the must such control offices Legislature necessarily the laws them as circumstances change modify concerning of to may require; political be grants power employed in the administration be of the are to regulated government the of each State to its own by Legislature according judg of unrestrained limitations its imposed ment, by any power the of States.” same case Constitution United the the by AUGUST: O.] Ellington.

Miai Mr. Justice “The said: Slate Story Legislatures to or limit the enlarge, repeal officers authority public their official all cases when capacity Constitution the the States do respectively prohibit them; this, among for the others, reason that there is or very good .no express contract implied shall their always, continu- during exercise office, ance such authorities. exercise They to are them the only during good pleasure Legislature.”

In Butler v. 10 How. Pennsylvania, Mr. S.), (U. Daniel Justice “The contracts says: to designed protected the tenth section of first article of the that instrument are contracts which perfect rights, fixed certain, definite, pri- vate rights vested. These are distin- clearly from or guishable measures or under- engagements adopted t-aten or body State Government for benefit politic of all, and from of the case, to necessity and according universal or be valued discontinued as the understanding, public shall good The selection require. who are officers, more than for nothing agents of such effectuating public is matter of purposes, convenience necessity, so, too, are the periods of such appointment agents; neither the one nor the other these can con- arrangements stitute obligation such or to agents, continue reappoint after the measures them them, into shall brought being have been found shall have fulfilled, shall have been useless, detrimental to- abrogated even public. well-being * * * We have shown that already appointment and tenure an office for the created public use, regu- lation of the fixed do not fall salary such within section of meaning relied on by Constitution do not come plaintiffs error; within import contracts, term inor, other words, vested private personal intended to be protected.” rights thereby Lamar, States,

Mr. Justice Crenshaw v. United IN THE SUPREME COURT. V. ELLINGTON. officer ap is whether an “The U. says: question S., behavior definite time or had during a pointed good in his or which Congress vested contract interest There is not novel. could not him. The deprive question nowas that there seems to be but little difficulty deciding or such interest right.” Commissioners, 100 Mr. Justice S., 559, Newton v. U.

In far a “The so except says: power State, Swayne legislative all Constitution, at times absolute as restrained its own by all its reach. It with within may pleas to respect officers their duties. It may or abolish them modify ure create the term service. And it also shorten or lengthen of com or diminish the increase the mode change salary * * * all be no con oases can these there pensation. are law, no because irrepealable they ‘governmental tract and * * within the stated. hence before category subjects,’ A evil.” result with different would be fraught a from Federal find judiciary do not

We suggestion authority degree questions which slightest been which our attention has cases cited. case only The Henderson referred directed, which Hoke in connection States with Court United Supreme Hennen, 13 U. 230. That is Ex Peters S.), (38 parte he to show cause should why rule a district upon judge was him. There had been removed reinstate a clerk who It involved. was no constitutional simply principle had the under the statute, whether judge, question “The com tenure ancient removal. Court said: law offices and the rules principles by mon case. The are have no tenure application governed in a ancient oases measure great usage. those depends which can with us there is no ancient usage apply But our created Constitution offices tenure govern and must depend entirely laws. recent origin They ATJG-USiT N. C.] V. ELLINGTON. a construction of our

upon just Constitution and laws.” Cburt Henderson, “The case of v. proceeds say: Hoke in Dev., decided Court of North is not Supreme Carolina, at all conflict with doctrine contained in the cases re- ferred to. That like the case, the Con- others, turned stitution and of Carolina; laws North and express of terms the law was behavior, the tenure during good of was, governed different from course, by very considerations those which to the case now before the apply Court.” The rule was was no There of a discharged. suggestion property in the office. to the we find

Returning State in Conner v. Courts, City York, New after supra, discussing opinion Hoke Henderson, the learned “It Justice with says: us, appears much for the respect learned tribunal which pronounced it that was influenced judgment, unduly the common law rule derived from offices, and prescriptive in a operating government genius whose spirit in no perhaps more than respect unlike ours in this the source and very subject, nature interests rights acquired by public officers. of an enumerating qualities considered office, as prop the Court admitted that it

erty, and in inalienable, many instances a incapable substitute; and being managed by in the it the only point semblance giving value, subject control. If to entirely those be legislative added the con sideration that it a and not political agency, like private for a contract definite we think there hiring period, will remain no incident in its correct signification.” This cause before the Court of in 5 being Selden, Appeals, J., C. concludes the Ruggles, Court as opinion follows: "Mr. Justice has referred to so fully, Scmfm'd reviewed so the authorities on judiciously, the proposition under consideration, appears re-examine unnecessary them. accords with judgment his My conclusion, viz., THE, IN SUPREME COURT. BLLINSTON. V.

Miál the duties employ- with nature of ‘these authorities, such an h>show that seem conclusively ment officer, public at- compensation prospective officer has no properly of a salary the shape whether it tached to ” fees.’ J., Dews, R. M. Nicholl, in tire of State case In 1834, the same ques discussing Charlton’s Reports (Ga.), “That a language: uses following tion, is of its en him whom the execution duties of to- property and of our country, the institutions is repugnant trusted, of commu the with universal understanding at issue that is officers Public is the result of those institutions. which nity, con but the body politic, this are, agents the country, benefit of the services for the people, stituted to discharge far from So laws which the people prescribed. under are but in their offices, they a interest holding proprietary As they an interest. public agents naked without agents of a of the sovereignty entrusted with exercise portion aof is not the subject the people jus publicum —the —which and it or annihilated, can be neither alienated and grant, as a as incomprehensible would absurdity, repugnant a can have would be private revolting, whose tiróse officers England, Unlike sovereignty. under do not hold grant, are treated as property, they offices of their the duties or function discharge but their authority instances In those is to them commission. by offices delegated been as officeshas regarded in which in England right has been technically of conveyance the instrument property, which an estate is a passed pur a conveyance by grant, of a dedi et tire technical terms grant, and employing chased, tire first But from organization republican concessi. com State, officershave been appointed by government mission, whether to its ordi a term which, regarded according or its a sense, author- legal imports delegation nary meaning O.] V. ELLINGTON. And. ity. our earliest a draw distinction between a books of an a

grant office and and inform us that commission, as former, its is implies, revocable, name not but that which is of an The latter, is. only delegation authority, title exhibited and defendant himself his return, can by which he vindicate his is has only that he possession, been elected has been duly sheriff, commissioned duly ITe not qualified. claims, under but by grant, therefore, commission, and that an commission commits to him only an interest. title of without is authority, defendant not a estate, an grant, passes commission, which is a warrant so delegation which, authority, far from founded and is an affirm- estate, upon passing ance of the fact that the estate is from him, but in those whom the power It confers him title to proceeds. but the is in

exercise authority, subject authority and under principal control, very authority of it. agent evidence Every authority implies perfect in the extent of that at least grantor authority, between him and it is insensible that agent, perfectly of such because becomes with a control agent armed agency over the of that exercise right.”

It will is be observed that “An office Judge says: Ruffin law enumerated commentators on the among incorporeal Nicholl, with that hereditamentsJudge dealing phase “As offices classed under question, says: property, are head must be a held under incorporeal hereditaments, to a man at a freehold or, least, conveyance heirs, can interest must be held them. Nor an action be main- tained for an a from disturbance or interfer- injury resulting

ence with unless it be an hereditament incorporeal or a freehold.” office

It is well that in settled the United States public 134-10

146 THE IN SUPREME COURT. V. ELLINGTON. be an of our is not and cannot nature government very 3 Kent Ed.), hereditament. incorporeal (13 Court of South the Supreme This came before question Willard, McKenzie, v. 2 when Alexander S. C., 81, Carolina, ., “Hoke He an exhaustive opinion. says: delivered J Henderson, holds doctrine, 4 N. C. Dev., contrary v. R, 1, of reason authority. Misap is support without the has fre on this subject doctrine English prehension views of rise to erroneous the powers politi quently given New York the view of the bodies.” The Court adopted cal York, Court v. New City in Conner supra. Court 63 440, Supreme Wingate, Ky., Standeford ques states the conclusion reached thus Kentucky and held good

tion: “An established office con its secured binding nor is not by any tenure contract, Roberson, J., in the the Court, page tract.” opinion our ad researches, only “Within says: range 448, to such an which would "countenance case give judged Henderson, in which, is that of doctrine Hoke unreasonable of North in 4 Court Supreme as reported Dev., page 1, could of a office legislative Carolina decided that the term the in when below that which prescribed reduced on a Con anomalous decision, elected. That cumbent was ours on not in identical with respects bearing stitution all con our sustained not, opinion, the same question, sistent argument.” Skillin, Me., Court of Prince v. Maine, Supreme “All when except legis Am. says: Rep., offices, pro is limited or restricted constitutional

lative authority There is, will of the Legislature. visions, subject in an no its salary.” with this vested exception, Canton, Chalmers, J., in 53 In Miss., Kendall for are “Counsel cor- says: plaintiff Court, opinion or while an election to office in appointment rect saying 147 C.] V. ELLINGTON. is not a in contract its broadest- so far does sense, par- take attributes of a contract as entitle the incumbent all recover salary incumbency; bis accruing during no there is bere demand for and in arrear. The earned salary action sounds the idea wholly damages, proceeds upon of a to hold for the vested full term which the right plain- tiff had been elected. is better than the settled Nothing legis- lative to terminate at of a pleasure incumbency office, either an statutory abolition of the itself or office a, or change the tenure the mode appointment Cole, J., in State v. 26 Douglas, 7 Am. Wis., 428, Rep., “It was not 87, says: claimed that the had vested plaintiff in his officewhich could or Legislature abrogate a destroy. Such would position untenable clearly a and as authorities, inadmissible principle under utterly our form government.”

In State ex rel. Davis, the Court, Mo., 129, speaking of the plaintiff’s case, “It says: upon the proceeds theory a person of a possession office created has a vested Legislature interest, private right property, in it. This is not true offices of this in this description are country; held neither nor they A by grant by contract.

mere officeis to be legislative always modi- subject controlled, fied or it. repealed by body offices creating England hereditaments, considered incorporeal grantable by Grown and a vested subject interests. so private Not States; American are not held or con- by grant nor has tract, any person private vested interest them, they are such therefore liable modifications as the deem it advisable changes law-making power may to enact.” White,

In Robinson v. Ark., Cburt Supreme has that State decided that “The assessor ais has statutory absolute Legislature control over 148 IN THE SUPREME COURT'. V. ELLINGTON.

MlAL and abolish them at all officesand may pleasure, statutory is invaded.” no so vested doing Gaskin, conclu 352, v. 5 In ex rel. Van Mont, People “In that, to be to arrived stated sion which Court having a Legislature, absence of constitutional restrictions, the man to office regulate to and particular create- power filled and the term duties which it should be ner term, or such to abridge has lengthen incumbent, another vacant and appoint or declare the fill office the Legislature exercise of such power by vacancy. I of the United Article he of section would not in violation law a State from passing Constitution, States prohibiting Amend Fifth or contracts, the obligations impairing be prop shall deprived ment that no one thereof, providing of law.” process without due erty 10 Hobart, Denver v. Nevada, Court The Supreme March the act of “The says: Legislature having Nev., 28, Lieutenant-Governor, vested certain duties 4, 1865, it was services, for his within allowed him a salary and the salary those duties take Legislature power of his term him the expiration away of office from before another them upon confer J., Adams,

Shaw, 3 Gray (Mass.), C. Taft one not contem law, an is created “When says: created Constitution, but its tenure declared by nor plated for benefit, regulated, the law public solely law as or terminated by public exigency enlarged limited, policy may require.” J., Drennan, Cooley, says: Mich., 418, Wyandotte has been and almost taken

“This is position frequently than that often seems better settled overruled. Nothing office does not establish or election appointment elected and between the relations person appointed contract will Offices the public good State. created TERM, C.] V. ELLINGTON. of tbe with legislative such power, powers, privileges emoluments attached as be or are believed to im- necessary to make portant them But accomplish purposes designed. as it be restrained

except may Constitution, Legis- lature has the same or inherent abolish authority modify has to it and will create, it it like con- with the exercise siderations in view.” Jochim, Attorney-General v. 99 23 L. Mich., R. 358, 41 Am.

A., 699, St. Rep., 606, Court uses follow “The ing remove officers not language: Legislature may only * * * office, it by abolishing vacant. by declaring And it may to remove from lodge power offices statutory boards other officers subject to regulations. statutory And it while cannot remove the incumbent of constitutional it is not because of an' inherent offices, difference in the quali- ties of the but because the to remove is power limited to the that creates. The constitutional officer is an power There is the agent same lack of the government. of contract the same

ingredients abolish the office or remove officer amendment of the Constitu- tion.” In this case the Amendment was in- Fourteenth voked and held not “A applicable. office expressly public cannot called be within the these consti- ‘property’ meaning If tutional be, it could would follow that provisions. every no matter how public have vested officer, insignificant, would to hold his officeuntil the term. Pub- right expiration lic offices are for the created Ibid. government.” purpose J.,

Andrew, McLean, in Nichols v. 54 526, 101 N. Am. Y., 730, is true are not “It offices Rep., says: country hereditaments, nor are held to hold by grant.

an officeand to receive the emoluments thereof to it belonging does not nor grow out contract with is an State, office in the same sense that cattle or property land of the owner.” Kreitz v. 149 property Behrensmeyer, Ill., Shaw, 24 L. R. 59; Jones v. 15 577. A., Texas, THE, SUPREME, COUNT.

150 IN Ellington.

Mial officeor nor is tbe contract, “An is neither appointment of tbe incumbent. emoluments tbe its prospective itself and its emolu- tbe law office principles Upon general tbe of tbe legis- within the control government, ments are in its whenever judgment branch of tbe government, lative vacant, declare the it, may requires policy officer before tbe its duties to another expiration transfer tbe term for which be was appointed.” Kenny Hudspeth, 59 N. J. Law, Jones,

In Foster v. Am. tbe Rep., Va., 642, Court uses think it tbe “We following language: to be assumed tbe outset an undeniable fairly proposition that tbe two branches of tbe as tbe direct Legislature, repre sentatives have tbe where no restrictions people, right, have been either in or them, terms imposed upon express by Constitution, to create and abol necessary implication, by the ish offices them as or accordingly may regard they necessary And superfluous. also under like circumstances they may tbe deprive officers their either salaries, remov by directly them from ing office so tbe indirectly changing organi zation of tbe to which are department attached as to leave them a without Mechera on Pub1. place.” sec. Officers, et 463, on Pub. sec. 23 Am. seq.; Throop 1719; & Off., Eng. Enc. of Law, 328. Hawkins, the ease of State v. 44 Ohio St., Min 109,

shall, J., “Tbe says: incumbent of an has not, office under our system in it. His government, any exercise it is based not contract or upon any It grant. conferred on him trust, to be for public exercised benefit of the Such public. salary as be to it attached is not him given because on any duty part public to do so, but to enable incumbent the better to perform duties the more office devotion of time exclusive thereto1.” 1903. AUGUST TERM,

N. G] V. ELLINGTON. Co., 100 it is said: of Donahue v. Will Ill., In the case under our form conceive govern bow, “It impossible to a office. a can own bave governmental title person ment, affairs. for administration of public tbe Offices created becomes office a is inducted into an thereby person When its duties, to exercise its and perform powers empowered be a misnomer It would for tbe benefit. bis, public owned that an incumbent of terms to say and a perversion bad title to it.” officeor an an bave tbe adopted theory of tbe decisions

“Some law view that tbe common under a mistaken officeis property, to officesof hereditament applied is an doctrine that ** * Pub- fallacious. which is undoubtedly this country, be both conferred and are to tbe people,, lic officesbelong will and appointment, to their taken according away tbe so to all subject office does who accepts person in relation thereto.” provisions constitutional legislative Tbe 50 L. R. Strickland, Va., A., W. Moore Henderson, and expressly Hoke v. case refers to Court in this research A careful therein. enunciated tbe doctrine rejects Justice Douglas, supra. of Mr. tbe remarks sustains fully Secretary in bis note to Grant v. Mr. Browne, Irving doctrine as states tbe India, 8 Rul. Cas., 266, Eng. State for “Both tbe conclusion: us with this cases in tbe cited by held principles upon general and tbe compensation, officeitself to control government within the are naturally law, doctrine tbe This is general or abolish. increase diminish, to An country. appointment offices in this as to statutory of tbe obligation the impairment is not a contract, an office O.] ELLINGTON. MlAL V.

usual clear and concise thus states the be distinction style, tween which is contractual that which not. legislation is of the to discussing act power Legislature repeal he “The substantial distinction establishing county, says: is this: the mere corporations Some created will of the by no other Legislature, there interested concerned. being party To this dele body portion is power Legislature to exercised for he all gated, public good subject times to be or annulled. Other modified, changed corpora tions are the result of contract,” to referring private corpora tions. The same distinction was same made prin J., ciple clearly enunciated C. by Ruffin, University 43 N. Maultsby, 257. He “But Court fur C., says: ther of the that the opinion is a University institution and hence body politic, control. subject legislative * * * And therefore the was not corporation originally the creature on its will Legislature, dependent for its existence.” continuing

“A of land a State is a grant because in mak- by contract, it the State ing deals with the purchaser precisely any other vendor if its might; dif- conveyance mode is ferent it is virtue of only its it has by because sovereignty other power modes than those which the convey general law to individuals. opens But done State many things seem to hold out to individuals after promises which, all, cannot treated as contracts without hampering legisla- of the State in tive a manner that would soon leave it without means of its essential performing functions. creates

State officesand to fill appoints it persons them; estab- lishes municipal corporations with and valuable large privi- for its leges citizens; its laws it general holds out induce- ments immigration; passes laws and exemption laws of trade the encouragement and agriculture; and under all these laws a or less number of greater citizens expect derive COURT. IN THE SUPREME V. ELLINGTON.

MlAL be laws regarded But can these emoluments. profit and the officers corporations State contracts between the ' bene- be, who to State expect or the citizens of the who are, ? their repealed so as to preclude being their fited passage, be no difficulty. could would seem that there these it On points corpora- or creates municipal officers When the employs State it must have tions as the mere agencies government re- it comes to whenever be to discontinue agency Consti- ‘The framers as no longer important. garded in the to restrain the State regulation intend tution did not for internal government.’ adopted of their institutions civil salary or offices, change the therefore, discontinue may, They or or organization abolish change or other compensation, to tire exist- according at any time, corporations municipal forbidden their unless view of State policy, ing legislative Lim. Const. (7 so.” Cboley’s own from doing Cbnstitution 387. Ed.), enter into dis- would be to do not think it profitable

We has come in which question cussion of the various phases of the judicial history It is a part before this Court. it to its logical to carry State. It evident the effort delicate to many rendered it make necessary conclusion has what extent the to distinctions as to respect its emolu- duties, an' its to word “property” applies or the abolished, an officemay when how ments, another its duties either transferred officeretained and We other agencies. distributed among governmental what to adopt cases, to review these prefer no disposition the American be called doctrine appropriately decisions in a number of the many set forth so subject, clearly which we have quoted. State history eventful period one

Certainly doctrine of Hoke one carry not occur any did into Without entering to its conclusion. logical Henderson TERM, O.] V. ELLINGTON. discussion of the any we for the subject, purpose may, that the State of North never assume Carolina has argument, time from its earliest any existence lost its forfeited its nor has the Statehood, political integrity, allegiance its citizens or officers of the State been changed other far so as the State rela- government, except occupied tions other offices governments. judicial The tenure in North Carolina to 1868 was for life or behavior. prior good At end of the civil war a convention was held and certain the however, amendments made to the Constitution, retaining, this The Constitution thus was ratified provision. amended a State there- by people and government duly organized under. were and en- elected and Judges qualified thereby were titled to hold for life. In such offices 1868 a convention second the mode of election tenure from held, changed life a term of and this then of Pear- Court, eight years, composed J., Battle, son, O. Justices Beade and and Superior Court of the bench which ablest lawyers several upon were without State, question recognized right amendment to them of their constitutional people deprive by offices. It did not occur to either these they judges held had their offices under or that any any-contract, they r,ecord interest far as of our therein. So judicial no was made of the shows, people history question amendment of their Constitution to the tenure and by change mode of election of abolish- their without respect judges any the duties of the office. The Court ing changing Supreme Courts of North with few Superior Carolina, exceptions, were Constitution of 1868 given jurisdiction by same had under the old Constitution. status Whatever they in its Federal relations from occupied State 1861 its their for life or be- held offices judges good and never action their on forfeited such part havior, any office to hence when resumed its Federal State, State IN TI-IEi SUPREME COURT.

Mial v. Bllinstoiu relations with the United States Government did so to its respect virtue of Statehood, original any new source if political and Hoke v. Henderson had life, been the were entitled and it was principle controlling they their to continue to hold their its duty discharge duties in accordance with the tenure which were origi conferred. nally Of we refer to of our course, portion without to the actual conditions history reference existing, that the State in its theory sovereign capacity withdrawn from in having its allegiance same capacity White, resumed it to the Federal Government. Texas v. S. C. 700; Rose’s Vol. It has Wall, VI, Notes, never been contended that the in North Caro seriously Judges lina were not from 1866 to 1868 in the rightfully discharge of their or that the title their offices were duties, respects invalidated. It is a of this coun part history that in a try thirteen large majority States original Union the tenure forming judicial as in North Caro was, lina, life or behavior. A number of these good large States have, adoption Constitution, since Federal their amended constitutions tenure for making judicial a term of and in so far no as our research years, instance, informs us, was the contention made that the offices were held reference property judges by grant. only to the which we find, that was a question mere sugges Mann, is in v. Com. 5 & S. tion, W. and it (61 Pa.), 418, is the Court in disposed “The by following language: that it is a point contract of the nature of a partakes con tract will not bear the test of examination.” we not insensible to are we

While which the responsibility assume in a case which has been as overruling récognized this for more than half a controlling authority upon subject feel that century, we we discharging duty Court of last resort owes when it has become that apparent N. AUGUST' 1903. O.] ELLINGTON.

MlAL V. into ease is not rea- brought question- supported by sound and is in son, conflict with the uniform and unbroken cur- rent of in the Federal and In authority State jurisdictions.

so far as v. Hoke Henderson is based a construction the Federal it our Constitution, is to- en- duty recognize force the construction that Constitution put upon the Su- Court of preme the United States. if We assume that lawful procedure the could come before the Su- question Court of the preme United whether an created States, of North Legislature Carolina was within section 10 of Article Fourteenth I, Amendment Constitution, Court would not follow its hesitate decisions rather than those this State. But it is said we should not disturb a decision so long acquiesced so often followed. “If a decision is based upon reasoning that can be shown to be that is to erroneous, say, contrary spirit analogies law, will be disregarded other even jurisdictions and overruled the same jurisdiction.” Wambaugh’s-Study Cases, v. Myers Craig, C., 169, referring Court, ato well-considered theretofore opinion rendered, speaking Pearson, J., “It through clear says: Spruill Leary Williams, sustained and after by Flynn much research no has been found to authority ‘the artificial and hard support rule, practical which at this would be operation day to enable man to sell another one man’s without land compen ” sation.’ This was regarded sufficient reason for over a well-settled in this State in ruling authority to the respect title to land. of a speaking sanctity judicial precedents, great uses

jurist “Ou other I following language: hand, hold it to of this as duty well Court, other, as to revise every its own and when it decisions, satisfied that has fallen into a to correct the error mistake its own decisions.” overruling IN THE SUPREME COURT. Ellington.

Mial Another “It Justice too far says: to going quite say a decision of court is conclusive a single absolutely It is an precedent. erroneous elementary principle decision is not bad it is no law at all. law; It be final before the upon but it does not parties Court, conclude other parties having rights depending upon question. same

“It is no doubt true that a even single adjudication this Court, upon before is not question to be properly it, ques tioned or for the most disregarded except cogent reasons, then a case where it only plain judgment the result a mistaken view of the condition of the law appli to the But- like cable stare question. decisis, doctrine almost other is not without every its legal rule, exceptions. It to a case where it does can be shown apply that the law has been misunderstood or where former misapplied, determination is reason. The contrary authorities abundant to show that in cases is the such duty Courts Kent, Chancellor re-examine the question. commenting decisis, rule of stare said that than a thousand more cases then be could out and American pointed English Courts which been overruled, had doubted limited in their Railroad, 15 L. Rumsey Y., 19, application.” R, 28 Am. St . A., Rep., is private

If it is true that property, finds herself her effort instead being sovereign, State, functions bereft her sover- her perform governmental for that hands those tied, obstructed, her her progress eignty, to be her whom she has commissioned servants have, by grants of her become her masters, sovereignty, parcels parts her into her to commissions forbid grants, pro- converting and, That is not or an forward. fancy, ceed or imaginary go we are asked principle perpet- result enforcing cases in this Court of decided show. amply uate, reports the mode of to change asy- it was governing When sought 1903. 159 TERM, N. AUGUST1 C.] Ellington. Mial v.

lums other State Assembly General the institutions, deemed best the claimed and held it was good, public State was the because the directors had a based powerless grant contract which were its entitled insti manage for a of tutions number v.Wood 120 N. years. Bellamy, C., Lusk v. 212; 120 122. It was Sawyer, C., held Prison v. 124 N. Bay, C., that, L. R. A., 295, a new method of “although powers distributing the duties of the and conduct of government the State’s Prison be may desirable, and the method undertaken to be adopted of 1899 Act such cannot best, yet changes be made until expiration .of contract with in cumbent.” The Criminal system Courts created by leg islative enactment could not be changed-or counties districts to suit the adjusted needs because people had solicitors with contracts the State and under held grants Jordan, offices. Wilson v. public 124 N. C., 683; McCall Webb, v. 125 N. 243. C., control, The State to as in judgment representatives people its interest a thought best, railroad, perverted because the directors had the office for grant property a term of two Patrick, v. years. 651. Bryan N. C., an repeal abolish the officeof act, Railroad Commis sioner and establish a new commission—an agency purely legislative creation —was for the same reason. denied Abbott v. 125 N. 256. What Beddingfield, C., the representatives deemed people improvement in school public sys tem was with the prevented, because grant

in his hand school committeeman asserted property right Owen, to the office. Green 125 N. v. Han C., 212; Dalby cock, 125 N. 325; Gattis v. 125 N. C., Griffin, C.,

We do these cite cases for the purpose criticising them. Nor purpose discussion, we them as regard deduction to be drawn logical from the that a principle THE,

ICO IN SUPREME COUNT. Ellington.

Mial a or in contractoral to person property public have office. wisdom of

Tbe facts in this illustrate the case strikingly is thus office not pre- holding public private property, func- the and its from its State agencies performing venting It in evi- tions to its internal became government. respect to dent to the that it would be wise inaugurate Legislature of a of the roads Raleigh Township system public working of so of Eor the the use convicts. purpose doing the law. Officers pro- was devised and enacted into scheme were of fixed. of term office for and their mode election and vided to enlarge opera- In of time it necessary became the process which had been to of The county. plan tions other the parts to and it was found be wise desired enlarge was adopted other officers, It became necessary its thus sphere. For this the work. duties subdivide to distribute the The whole scheme enacted. law of purpose the good, improve- for its object public looked and had creation of to be not offices roads, of ment the public for this purpose. mere agents employed to the granted roads; in new scheme for working finds no relator place for him. no no or salary provided he has duties powers, roads the working public contention correct, If his be is the of office This expires. his term be until must stopped has a that he property right contention result of his logical source; that instead risen above his that he has the office; commissioned to discharge mere servant agent, of being owner of a he has part become public duties, certain work of his will a State, great public sovereignty This does violence to our stop. concep- must improvement servants bear to people public relation which tion their government. Nicholl Judge used State language

The following Dews, forth the reason sets so clearly supra, N. C,] AUGUST1 ELLINGTON.

MlAL V. the true is founded that we at some principle quote length: “The as ivell other is not a appointment him, officers, but the con- grant derogation public, rights exercise of their stituting by people, sovereignty, of an their into effect. agent sovereignty carry creating does restrict its sovereignty body whom that the Legislature through sovereignty expressed exercised. The tois extend the sphere purpose action, its or at it if least to But give operation. true that the has a officer that that prop- its erty embraces duties as at the were law prescribed by moment he was commissioned and and that those qualified, duties cannot be without forbidden disturbance changed private is that property, the consequence appointment the officer becomes above the of the placed sovereignty people the term for which he is elected.” during

While it is our to for if search we find the duty and, haply to it to the we think it not in law, apply view case, improper, of the discussion of the range the involved principle in this case has taken in our to in Eeports, to say, response if the that be argument the to Legislature permitted change, abolish or otherwise deal with modify, and its public office in uncertainty security constant incumbents, disturbance in the administration the domestic affairs of the State will that ours “of follow; is government people, by peo- ple and for the in so far in have people”; that, except their law limited their and act organic power speak through their rests with who We, them. representatives, sovereignty are commissioned to perform judicial functions, may claim to be wiser find for than other our they, guide conduct than ordained. If the Constitution which they have not authorized people legislative department out their parcel officesas grants public pri- sovereignty by vate dare so. we not do The Legislature having

134-11 THE COURT: IN SUPREME ELLINGTON.

MlAL V. been with the either providing power'of electing entrusted as the must, for the of officers of election legislative creation, such to. make entrusted representatives people, offices of such in the emoluments duties changes tenure, as in interest demands. This public power its judgment been vested that department government, having law as col- is our “State’s obey enforce duty lected will.”

To Henderson conclude the Hoke v. the doctrine matter, officeis prop based proposition private public flow all results that therefrom. with erty, logically ex far holds we so to be law, as that proposition case officer have a -it and declare that no can prop overrule pressly to offices State; erty respect sovereignty the people created and Constitution, provided tenure, alter, assembled alone can their convention change emoluments, them; duties or or abolish respect it is within Legis legislative offices, entirely lature them as policy suggest to deal with public may demand. interest Court below judgment Affirmed. IIolee that decided

Clark, O. Court I., concurring. infallible, did not deem themselves v. Henderson and suc erroneous, divers their own opinions overruled Court. other opinions Cburts have overruled ceeding to Hoke v. Hender attached There is sacredness no peculiar has at time, court whatever, anywhere any son. other No in All concurred authority. disregarding followed it as have few' of which it, criticised a have sharply it and not few 253. N. been 127 at C., pp. 252, have collected, criticisms decision scant compli Johnson If Mr. Reverdy paid Garland, in Ex it in his argument parte ment of mentioning N. AUGUST! 1903. 163 G] Ellington.

Mial v. 4 Wallace, 333, Oourt not with opinion did treat it as much consideration. It not therein. even referred to

Nor has the case been followed even this Oourt. always It owes its not in prominence to the decision 1833, original not followed for near to its revival years, forty and wider after in application political 1810 changes Its fundamental that office is not an doctrine agency but property obtained contract therefore protected by the contract clause of Federal Constitution', was most effectually denied when took his on by every judge he seat or the Supreme Oourt since Superior 1868, bench he did so of that The Convention of 1868 disregard holding. no more

could a contract abrogate was a (if contract) office than it could other contract 1865-’68. any The Court made has Williams, often it, Mills v. 33 ignored notably C.,N. Gales, v.

558; N. Bunting 283, 17 v. C., Winslow Mor ton, 118 N. and there are other C., 486, cases in which it has been only partially upheld. these cases Having discussed in numerous from Prison v. dissenting opinions Day, N. down C., Vann, v. 240- Taylor C., pp. in which last many opinions the legis sustaining

lative over offices created by legislation collected, it is not that I should necessary cite them again.

As the essence the decision Hoke v. Henderson is that on based contract hence protected by United States Constitution there is no (for such clause in the State the General if could Constitution), not, Assembly view was make rule nor correct, law to any any pass disregard it. If all then what they could, future contracts kind soever could taken out of the the Federal Con protection stitution statute by simple that all future shall contracts far S'o from protection. Legislature acquiescing, from Hoke Henderson case, itself every down Mial SUPREME, 164 THE IN COURT. Ellington.

Mial v. was case, necessarily presented by legis- the present Ellington., As v. of Hoke Henderson. lative action taken disregard case, to the doctrine of the Legis- as Court held that long no- the contrary, persistently lature could make rule beyond numerous it it has often as evidenced by done, disregarding of decision except is no rid the- decisions. get There way for the reasons Court which made repudiating it, by the in this case Mr. Jus- in the able filed given very opinion G'onnor. tice the administrative and political shapes Legislature short inter- of members elected at State, and its are

policy direction vals for the conforming purpose the prog- affairs to the sentiment people changing into events. This must be operation through ress of policy put If a who are Leg- officers simply agents government. in its for life for two can years agents islature elected put Court’s that office them terms, holding keep long such is a contract and incumbents irremovable, temporary are for it may can period dominate the people Legislature it. filled or created by duration offices see fit to fix all American This of the foundation principle denial The fact that the of the people. government- sovereignty —the term, and forbids of certain officers fixes the Constitution all is of itself conclusive salaries diminution their are not thus other their salaries protected, officers and acting through control by people subject change Legislatures. subsequent was Hoke Henderson that when

It must be remembered held, not then Court had States Supreme decided United How Butler v. Pennsylvania, afterwards did as it soon not a contract and pro an office ard, Constitution. Federal clause the contract tected by since, maintained ever Court has uniformly This doctrine Commissioners, S., Blake 548; U. Newton notably N. 165 1903. TERM, O.] Ellington.

Mial v. S., S.,U. v. 103 S., 227; 99, U. Crenshaw v. U. 134 U. S., other the late decision many eases, including Taylor Beckham, v. S., 178 U. those decisions or any Had of them been one rendered it is certain Hoke 1833, quite v. Henderson would the other for the have been decided way, construction the United States placed by Court Stipreme upon clause of the Federal any Constitution is conclusive upon all other courts.

For Hoke v. Henderson was well-nigh applied forty years no Williams, over an office. v. 33 controversy In Mills 358 it was cited C., not (1851), disregarded prac both in tically overruled, reasoning opinion its which was to that all the effect, hold duties and emolu ments of the office Sheriff of Polk were transferred County intact to the Sheriff of Rutherford Cotten County.

Ellis, 52 N. C., cited, it true v. Henderson was Hoke but the decision on a rested different the State point —that could not a vacate Federal office. of 1865 The Legislature Hoke v. Henderson offices disregarded legislative vacating and even such it new as saw fit with men. filling judgeships In 1868 the convention did same again thing by judges which Hoke v. Henderson held could not be done as to e., i. clerks, life tenure into an elective changed appointive term of This were could not have been if office years. done Federal Constitution forbids "State contract, any the_ law to pass contract.” The impair the obligation restriction was upon State, not 'its upon merely Legisla ture. The to a Convention well prohibition applies as Louisiana v. 105 U. Legislature. Taylor, S., other cases 125 N. 285. As cited, stated, C., p. already who took his judge seat tire bench every took in defiance Henderson. The Hoke turned officers out in 1868 virtue of held, any authority recognized SUPREME, COUNT. THE: IN V. ELLINGTON. after in 1865, had all been inducted 1861-’65, but they

the war or later. closed, without silent

After thus and practically disregarded, being v. Hen Hoke of it for near forty years, single application in major derson resurrected after the change political was elections of tire in in consequence General ity Assembly ex more and somewhat and 1872. Its invocation 1870' through effort the people, tended thwarted the application in State, control their new representatives, policy offices,created former Leg incumbents of by changing ex in the change with men views accord with islatures v. Hen Hoke on, at the ballot-box. Later pressed however, in limited, Bunting or much derson was ignored, practically Morton, v. 118 N. Gales, 283; C., v. N. Winslow 77 C., and cases. other v.

In v. of Holce there was Bellamy application Wood were Henderson in a case where new incumbents placed but a no of duties offices to which had been change there limits names decision was within only. This change decision. It was the subsequent cases, begin original it v. 124 which carried C., 362, Prison Day, with ning inevita and its ultimate and it to denied causing further, Elizabeth, at C., ble 120 N. overthrow. v. City, Ward fact first called the writer to the tention was time by Henderson had been denied decision v. Holce all and that it been recog other had admitting while States, nized in it Ward was not protected was held that State, Wilson, it. v. in a 121 N. C., 425, very In Caldwell J., was shown Douglas, again (at pages able opinion by all Henderson contrary and Hoke v. was 468) elsewhere, precedents expressed was opinion ex its doctrine been “carried to fullest legitimate had tent” was Wilson, Ward, like held here, protected it in his office. N. C,] Ellington.

Mial With the to new terri- expansion doctrine subsequent and wider it can serve no now to deal. fields, tory purpose Those matters have been discussed fully opinions filed in the various “office- dissenting opinions concurring from cases,” which holding Day’s case, supra, Legisla- ture was denied to control down Penitentiary, Vann, various offices C., 249, 127 N. through Taylor which was as to the costs in an $2 action to recover a per annum office when Board of (member County Education) the term of the officer had before expired judgment.

Thus the doctrine expanded, itself. necessarily destroyed could not and would not be people State prohib ited and controlled in the of their own institu management tions their public policies by judge-made law, denied all other courts, including highest Washing ton. The doctrine has existed nowhere else. conflict The between the Court and the General not con Assembly could * tinue. No of act could terminate it. Legislature Every time the has been in all has these it question presented years been raised of act which had been Legislature in of Hoke v. Henderson. Its assertion passed disregard could be renounced the Court. This it has now only done, in and the doctrine of clearly, private explicitly, on started its course the decision Hoke v. public office, Henderson, “no like the ivalk will, Hamlet, ghost longer the earth” to disquiet peace. Gormar, Mr. in writ- Justice J., dissenting.

ACoxtgoMery, for the Court its in this states and ing opinion case, clearly what is called the American doctrine in forcibly reference to the nature and tenure of makes and copious extracts from decisions of the of courts States many and two Union, from of the Courts of the Supreme United affirmation of view States, majority COURT. THE SUPREME IN 1G8 Ellington. Mial v. the Supreme it be true and taken Court; Federal, State Court, of North Carolina is the only Court is that it property; has held that a legislative and that officer, and the between the contract State held by determina- of his office by judicial can be deprived the officer isolation of this I was particular’ tion aware only. Feb- for the at its when I Court, Carolina Court wrote North v. Bel- the case of Wood opinion Term, ruary time take the did I not at that opposite lamy. Why, then, on Court the decisions use to ally view and my voice senti- with the judicial under discussion universal subject ? ment of the country first not do so. The reasons I could

There were two why the law as three score and ten years almost was, law had been the was written in Wood Bellamy, supra, made by decisions of this those decisions under and Court, views, different and many political judges holding personally (cid:127) of and them known to judicial temperament marked be order learning gen- very highest legal ranking eral those scholarship; decisions, especially and, second, Henderson, 15 N. in 1833 C., delivered one Hoke con- Juslice seemed to me to be Ruffin, and written by Chief clusive on the The time were subject. Judges Ruffin Gaston, of which Daniel a Court any Justice), (Chief a model nation in might proud. opinion age notable for its judicial style, strong pure English No of it force of its reasoning. synopsis the vigor can do the author the conclusions was this: justice. Among That an office was a vested under property, right, existing contract between the State and the an act of officer, his which the officer of deprive the Legislature sought in the office was unconstitutional void. And was until not doubted this Court proposition sixty- six had when the in Prison years elapsed, dissenting opinion N. G] Ellington.

Mial v. Ciarle, filed v. N. by Justice Day, C., 362, Chief present Justice.

Within less than two before the dissenting opinion years in had written the case was the same Justice Day’s filed, in v. Eliza unanimous of this Court the case of Ward opinion in beth of Ilolce v. Henderson the doctrine City, upholding restriction only upon legis “The following language: lative is that after the officer has office accepted in the terms act specified being creating office, cannot contract between him State, Legislature turn him out an act the office abolish 'purporting This which the same existence. effect continues officer is on the that an officeis a contract between the ground Henderson, 15 C., and the held in v. State, as was Hoke and has ever since been followed North Carolina down Wood v. this is the Bellamy, supra, though only including one of States of Union sustains forty-five doctrine.” that celebrated opinion (Hoke Henderson) writing J., Pearson, C. in Clark v. afterwards,

nearly forty years as “that 66 N. 8 Am. referred to it C., 67, Stanley, Rep., 488, mine much rich been I cannot from which so ore has dug.” think Hon it out of from address of late place quote orable William on the Justice A. Graham Chief, life Puf remarks in reference Hoke v. Heiu- to that fin, case, great with derson. said: Ruffin’s The speaker “Judge conversancy law and political and American public English history ethics, seems to to him task of the opin have assigned delivering ions on most constitutional which have attracted questions attention. delivered him in general That the case Henderson, Hoke which it was held that the Legislature in,the could a sentence of its own form of an not, by enact ment, divest a citizen of even property,

cause the was an re proceeding judicial exercise power, IN THE SUPREME

170 COURT. V. ELLINGTON. the ceived encomium of Kent other authorities on con stitutional I to witness law, happened, personally, the it was main relied on Mr. Johnson authority Reverdy by Garland, in for in the the second time Ex argument farts involved test to ex the power Congress, oath, by clude from in lawyers the Court of the practice Supreme United States for in civil war having participated against the and in Government, which its on the reasoning negative side the was sustained tribunal.’7 question august The same was before the case question this Court again Ellis, v. Cotten 52 545. N. The Court there C., said, Pearson, O. J.: through “The leval effect appointment was to the he became give office entitled applicant, and as a for Vested term three from right’ years, which he could manner removed only prescribed law, and which the had no Legislature deprive Henderson, him. This is settled. Hoke v. 15 N. 1.” C., And was again the decision question presented Hunter, N. C., case 6 Am. 754. The King Rep., Beade, opinion^ was delivered who said: case by Judge is better than settled that an “Nothing property. incumbent has same it that he has to other There is a contract between property. him and State that will he the duties and he is discharge pledged by his bond and his and that he oath; shall have the emoluments, State its honor. When the contract pledged by is struck it is as indi a contract with complete binding viduals, and it cannot be abrogated except impaired consent parties.” both case of

Again question presented in Bailey Caldwell, 68 N. same Upon way. C., decided and the authority cases, reasoning foregoing numerous decisions the same and heard involving question O.] V. ELLINGTON.

MlAL in this with Court, Wood v. to beginning down Bellamy, time have been made.

It not be to that the may inappropriate say thorough elaborate of counsel and the arguments dissenting opinions in the cases that followed weak Wood v. much Bellamy very ened view tire of of decision in v. my correctness the Hoke Henderson as to the of our and. institutions applicable genius the had. I am free to that if it age, and thought say been new I what is called by would question adopted the Court I American doctrine.” But cannot my “the get consent in decisions of this be join Court, overruling the with Hoke v. Henderson and at intervals down ginning in almost law first, because as settled present day; those decisions has been too law of this State to long overthrown who judicial judges decree the law see more than Court made did that clearly great Henderson, in decision that celebrated case Hoke not to mention followed the who succeeding judges precedent.

And the General in has met session more' again, Assembly than times since the of Hoke v. decision Henderson. thirty Its members at all its far knew, that so sessions, Con that officesnot legislative ordained offices, is, stitution with alter terms, concerned, fixed could were effect laid down that rule enactment case of a its statute, not inter “retrospective” action, thereby with vested fering rights, prescribing rule said officeand the extent interest and tenure modifying therein Wilson, "prospectively" Caldwell C., means elected or p. such officers By appointed after the into hold effect the act would under the going has its No such statute statute subject- provisions.

been enacted. has legislative department Hoke v. Hend acquiesced

erson with full had knowledge change IN THE SUPREME! COURT. V. ELLINGTON. effect of doctrine announced in v. Henderson Hoke

in the manner and to the above A extent bill specified. of 1901 re purpose introduced at session ceived unanimous of the committee which had it report but for reasons to them it was not charge, satisfactory law. enacted into

Under such an act the officerwould officewith the take when knowledge he it that he understanding, accepted held it to removal under subject the terms of and no the act, arise such could as was in question decided Hoke Hender son, where the to the was of right case unqualified. removal of such officer no constitutional any either provision, Federal or could be invoked to of State, protect rights in case of his removal from property office, as he agreed that be done when he it. might It was the accepted Constitution of North Carolina of 1776, adopted Halifax, which referred to in the case of Ilolce v. Henderson as the instru ment which was violated of the act and Assembly, pro the vision was 12 in section the Declaration of which was Rights, in these words: “That no freeman to be ought taken, impris oned, or disseized of his liberties freehold, or or privileges, outlawed or or in manner exiled, destroyed deprived of Lis life, liberty law of the land.” property That section is now section I Article of the Constitu tion of North Carolina.

There was discussion in some of the and opinion Court, also in the of the concurring opinion, views conduct of elected under judges the State Constitution of 1868. There had never been decision United States Sta- Court preme that an office was holding property resting contract. Those must have judges known that fact. In Hoke v. Henderson such a had been made our own holding and no Court, doubt under judges elected Con State stitution of 1868 believed that convention of had the people N. C.] ELLINGTON. V. full to abolish offices or remove officers,

in the exercise of had terms changed and also offices removed incumbents. judges’ of Hoke could doctrine v. Henderson was that the Legislature not one of his it was deprive office because property rested but there is not a in the contract, hint case in convention did not have people that power. I am with the pleased spirit and of Mr. Justice language Oonnor manifested the decision of the case1, throughout to that especially which reference to the deci part sions which are said an extension Court, by some Henderson, doctrine Hoke v. is made. I it: quote do “We it will be think to enter into profitable the dis cussion various which phases has come question before this Cburt. It is a part judicial history State. It evident that the effort to it to its carry logical conclusion has rendered it necessary to many ‘make delicate respect distinctions as to the to what extent word to an its its applies emoluments, duties, when an and how office be may abolished, retained and its duties either to another or transferred dis tributed other have among We no governmental agencies. to review

disposition cases, these what prefer adopt be called the American may appropriately doctrine so in set forth a number subj ecf, of the clearly decisions many which we have quoted.”

As to the the decisions correctness of referred to in the above with the admitted that the quotation, premise law v. Henderson Hoke was the law in recognized at that time am Carolina, North I I as must abide content, indeed be, with profession in judgment belief hope and of judgment future calmer if an times, adverse be more than one, may expressed was that charitably of the of the decisions the time were made. opponents THE IN SOPEEME COURT. V. ELLINGTON. of the Court When the L, dissenting. opinion

Douglas, was filed in I was ill as to be this ease so helpless, seriously .and I asso hence take consent of my advantage kindly ciates I to noAVfile would my dissenting opinion. gladly on the matter but for that such action drop my the feeling misunderstood. part might light unforgotten I seems should the facts that past, proper briefly state constitute in in my justification my consistently following career in judicial laid down Hoke v. Hender principle son. I I Excuse to offer. understand none apology that the of the Court to the extent of opinion goes deciding that no one can have the tenure of an any property and “that in is within officesit respect legislative entirely with them as power public deal Legislature This interest demand.” policy may suggest n cuts the roots the up principle Hoke dominating son all Hender and of thereon. No cases subsequent based distinction whatever is made between the cases in different volving application It is the principle. tire principle itself denounced as therefore intrinsically vicious, n calling judicial It follows that extirpation. necessarily in the of this decision we were in 1897 light just wrong our unanimous decision in rendering Bellamy, Wood v. Lusk v. and Person v. Southerland Sawyer (120 C., et as we seq.), were of those decisions subsequent which became the of so much subject controversy.

There has been no in the and if the Court is change law; n now, it was then to the dominant wrong refusing in the of the officesto which Legislature disposition were entitled. It ‘they legally follows that if the irresistibly Court had been constituted as it now, in the light of its present it would have offered decision, no bar to the will of Legislature, would have turned over the asy- 1903. N. 175 O.] V. ELLINGTON. bums and other State to those whom we institutions excluded.

This seems of fate. very irony

I will not undertake to defend the principle underlying Henderson, the decision in v. as I Hoke can add nothing what has been said. already been My views have personal fully when expressed the Court in Green v. speaking Owen, Vann, 125 C.,N. N. Taylor C., Jordan, in Wilson v. my concurring opinion I will now confine C., the reasons actu myself ating me as I accepting principle settled law when came it thereafter. bench, consistently following The Court with from quotes approval opinion my speaking Wilson, for the Court Caldwell 121 N. C., 467, follows: “With the exception it is well- State, settled doctrine in the United States is not as held regarded under or within the grant contract, general constitutional provision but unless the protecting contracts; Constitution otherwise has expi’essly provides, Legislature or or increase the duties diminish the vary salary or other to the or compensation appurtenant abolish office, of its or before rights the end or privileges term, to alter or to abridge term, abolish the office itself. * * * in North Eixcept it well Carolina, settled there is no either express between contract, implied, a pub- lic officer and whose he nor can a government agent is; office be as the regarded property incumbent.” That is went on to true, opinion same our “But say: decision in the case at bar does not conflict with that Hoke v. Henderson. The now statute under consideration is not and does retrospective not interfere with any vested right. of the act

Being part originally the officeof Rail- creating road a rule of Commissioner,’it ‘prescribed’ in said modifies extent of interest and tenure therein ‘prospectively.’ defendant, under taking the act, holds COUNT. IN TI-IE' SUPREME

Mial v. ErxiNOTON. bound is and, contract, bis to tbe relying upon subject act, was tire of its express provisions its One all by provisions. of to remove and tbe power tbe Legislature reserved right of facts. a state under given of tbe Governor to suspend duty method tire necessary with Tbis together suspension, in bis tbe defendant was to by of its assented enforcement, * * * that tbe office; only tbe acceptance to him the have in office that by statute, could tbe given be His commission, in all its must be construed parts. which words us with the fateful is bis title appears deed, of tbe face tbe written across its band tbe created act law.” realize I said for a unanimous Court: case also “We tbe line de- of tbis Court settling

tbe responsibilities ju- tbe and supreme markation between executive legislative, must be constitutional obligation kept which by dicial powers, vital Tbis line must drawn forever and distinct. separate a firm and endeavor to' draw with alone, us and we will free from tbe touch interest band, even alike palsied Should tbe and tbe of power. subserviency itching grasp leg- of tbe that line, islative State cross departments executive where us will them back rests belong; upon we put our own side. Tbis is tbe equal obligation keeping a not of but of matter not expedi- discretion law, question but of right.” ency

From tbe thus de course conduct judicial explicitly I never the same term clared At knowingly departed. v. it was a unanimous Court Ward Elizabeth said City., 121 N. that “Tbis is on C., 1, ground State, contract between tbe officer’and as was in Hoke held tbe Henderson, 15 N. has ever C., since been followed in North Carolina down v. Wood including Bellamy, is tbe tbis State though forty-five one States only supra, of tbe Union which sustains doctrine.” (The italics Ill TERM, C.] Ellington.

Mial sbow whatever This mine). quoted that, language its differences of arisen as to opinion may subsequently the itself the existence of-the as settled application, principle law of North so Carolina was admitted. It was universally the in Court the United States recognized by Supreme Hennen, Pet., re on the Court where says, page Henderson, 261: “The case of Hoke 15 N. 1, decided C., in the Court of North not all in con Supreme Carolina, with flict the in the contained cases referred to. That doctrine case, like others, turned the Constitution laws upon and of North Carolina.” in of the Cburt had only argument opinion

not been previously advanced and considered is change in the of the and personnel Supreme Courts follow- Superior ing the Constitution of 1868 adoption the relation and States to seceding Federal Union. I will not reopen in questions involved the civil war and the web of tangled reconstruction. The war issues were settled embattled freemen on both believ- who, sides, that their cause ing to it the sacred, freely last trib- gave ute heart. All that loyal we need do to cherish the of their heroic memory deeds their last guard resting place, flower on feeling every a soldier’s growing grave nestles its roots in a hero’s breast and its fairest expands flowers sunshine of glad in a liberty reunited peace land.

IWhen first its came upon only new bench, member, and in its I was at way once with every junior, confronted the class of cases Wood v. After represented by Bellamy.

the most careful consideration, and with no certainly possible bias in I personal concurred with direction, a unanimous Court in the decision of those thus cases, to the giving greatest enunciated Hohe v. principle Henderson the deliberate assent of conscience. Even if I my my had judgment

134-12 COOPT. IN TI-IE SOPEEME Eixikgtox.

Mial V. I have hesi- would of the decision principle, approved of soli- upon lonely pedestal tated place myself was wiser than aggre- that-1 tary assuming infallibility, than for more sixty years. wisdom of Court gated a mere I look of jurisprudence do not upon system but as of disjointed opinions, conglomeration heterogeneous fits upon case whole, accurately harmonious which every founda- becomes the it, that have turn those preceded with noble structure all for others. Thus is reared the tion So a Grecian temple. simplicity grandeur beauty, bench advent I not seek to my did signalize feeling, rather law, out foundation stones by prizing I to- tire structure satisfied if could add by up, building be. it and stone, though one small rough-hewn v. Henderson was delivered in Hoke opinion of Justice this Court by December Term, 1833, Ghief Ruffin and Daniel Gas- associates, his Judges concurred by and than for more Court sat unchanged ton. This together great either ten and has no superior elsewhere, here years of or the pri- conduct judicial purity and ability integrity individual and judicial No finer combination vate life. bench. Justice has existed any 'character ever upon Ghief State, with in this profession at the head stands Ruffin Pearson, who paid it Justice rival, unless be no possible Chief that while Justice him the compliment saying high Chief ever been man that had was the most learned Taylor mind, its most Justice Henderson reflective bench, and Ghief than in a qualities higher* degree both Euffin combined are models brevity, Daniel’s opinions else. Judge one was the beau ideal clearness. Gaston Judge and strength contained flower and whose character Carolinians, North I have often that virtue. every thought fragrance intellectual was overshadowed qualities of his splendor It said of may of moral character. well be sublimity AUGUST1 O.] ElXINGTOSf. Mial «.

bim that men of his few have left among great generation, a more more stainless name. It is splendid none of his that judgment countrymen deliberate throughout long life he bore trenchant blade of distinguished ever heroic manhood with the of Christian shield spotless chivalry.

But it has been that not care- intimated that opinion .considered, and those eminent like fully Homer, judges, sometimes nod. The itself shows no might evidence opinion of haste or want of deliberation. On it is re- the contrary, as a model best of and has garded re- judges, repeatedly ceived the warmest from the sources. commendation highest

I know it is said that even Homer sometimes I nods; but never heard of his in a going sleep continuing profound slumber for remained for years. It the Courts seventy North Carolina to take this than Yan Winkle Bip nap, more and as wake we ask where are up we well Buffin Daniel and ? Gaston and Pearson And who Gone! we sit in the shadow of their fame are asked ever-widening say knew not whereof Let this they spoke! said those who shall not come from me. may —it the deliber-

Having given opinion principles ate assent of conscience v. Bel- my my Wood judgment and the kindred cases I decided at thát lamy term, deemed them their If duty carry conclusion. it my legitimate was law when 1897, Wood was in decided, tlie Bellamy the law in remained the absence of constitutional or statu- and those tory who invoked those provisions; subsequently identical were entitled to their principles equal protection.

If sacred in 1897 to were they enough keep Bellamy retained equal sanctity when invoked favor they 1899, of It be that the of those Day. may application principles carried too far in some was subsequent cases, but I the did I best I knew. admit sometimes my opinions when once be too fixed. firmly (cid:127)formed Be'that as it may, THE SUPREME COURT'.

ISO IN Ellington.

Mial a,nd and take their 'texture of tbe result reflection conviction, the shifting’ native than more from my the hills granite I fol cases but coast. dunes of a storm-swept- sand these Court v. Phillips, the of this in Sutton lowed injunction “It is best to on 50'8, wherein it says, page C., 502, am aware of fre I vias.” painfully stand super antiques in this pronoun opinion, -personal quent appearance necessity. its regret apparent deeply State, An of the constitutional history examination so enun clearly I will show that think, principles clearly have not v. Henderson received the prac ciated Hoke only judges, succeeding unanimous tically approval ratified been by people direct implication repeatedly by the December rendered themselves. This decision in 15 N. 1. Since that time there C., Term, 1833, reported five distinct conventions, have been constitutional separate but none which have, abrogated all of which might, of that opinion. modified principles met on June 4 and In 1835 a convention constitutional which 1776, were framed amendments to Constitution and on May In 1861 a met ratified convention people. amend- with some other Ordinance Secession, passed In 1865 none of submitted to people. ments, were met on October Ordinance repealed convention This slavery. prohibiting Secession ordinance passed and further amended May, convention reassembled above ordi- but with Constitution; exception were nances secession amendments slavery, relating submission people. rejected under the A convention called General Recon- Oanby 14, 1868, Act of on struction assembled Congress, January which was ratified 1868,” framed the “Constitution In 1875 a convention on September assembled the people. severa,! Constitution in particulars, amended their 6 and N. 1903. 181 O.] V. ELLINGTON. action ratified at the election being people In addition these several conventions, amendments have been made action such by legislative popular ratification, as the celebrated “free suffrage” 1854-, amendment of the tax re those prohibiting payment special bonds, to the election of trustees lating increasing University, the number Justices of the re and some Supreme Court, 81, to other out particulars set lating chapters principally 83, 88 of the To 84, 86, 87 and Laws of 1872-U3. 82, 85, these be added recent amendment suf restricting The amendments of far- frage. various changes made'many the successive reaching including repudiation importance, of the United States Confederate governments States and the enfranchisement and disfranchise practical ment but the negro, of Hoke v. underlying principle Henderson remained unchanged. in the

Moreover, that have seventy years elapsed, thirty-five different inmet more Legislatures than aggregate no bill to do with the effect of forty yet these times, away decisions has ever calendar. Under the decis got beyond ions of Court, this have I assume that this long and unbroken decision legislative acquiescence this is an endorsement of its ? essential Court principles Supreme United v. 149 368, Railroad U. States, S., Baugh, on 372: says p. “Notwithstanding placed interpretation on decision section of the thirty-fourth the Judiciary Act of never 1789, Congress has so section; amended must taken as clear construction thus placed the true and acceptable to as well construction, legislative as to the branch of the judicial government.” Cole,

In State C., N. an able and learned 1069, Court opinion, this on “To says, 1079: page the suggestion Fuller, that the construction statute in put State C., decided in “unfortunate,” note we COURT. SOPEEME IN THE. ELLINGTON. MlAL V. that time undergone of this Court bas since that personnel tbe been term almost case has at every and the many changes, the controlling conceded to be author- cited with approval Legis- is also Court. It note worthy this ity in this sessions and the law met lature has different five means have no other We has not been changed. respect law is.” what the ascertaining Johnson, well-con another 133 N. C., Harvey 360': this Court on page “We says,

sidered opinion, in the law no been made by legislation seen that has change inferred and it safely stated this be by. Court, repeatedly construction of the our has accepted that the Legislature in has it. as being statute as proper acquiesced one, should be.” with what the law accordance uniform acquies- In addition to long legislative as well as we legislative have its express approval by cence, The convention of constitutional action. amending now 33 of Article what section provided Constitution, “the amendments to the of the Constitution that IV made this convention shall not Constitution of North Carolina by office or term of now ex- have the effect to vacate any and filled or held under the Constitution of State isting or under the Con- virtue election said appointment any stitution and of the State made the laws pursuance thereof.” also “All

Section 38Y2 Code provides persons who shall officeunder of the acts hold any hereby repealed any hold to the shall continue to tenure same according “A thereof.” a bill entitled: bill to be entitled Moreover, to the act restore General pre- Assembly the tenure of officesand the duties scribe and regulate and emoluments thereof” was into the introduced Legislature of 1901. or office, This bill provided every place posi- should be held and tion created the General Assembly N. C.] EmNSTON.

MlAL V. and that contract, a trust, mere agency deemed have any be deemed to should no thereafter appointed person but that such interest or vested any property right changed, abolished, such position might office,place As General or transferred at pleasure vacated drawn by and elaborately This bill was carefully sembly. its well to was calculated effect

most skillful draftsman, Court, in of this was valid under the decision It purpose. this time Wilson, and if then would by

Caldwell passed every legislative have controlled nearly practically under avowed fully the State. Its sole openly purpose, rule enunciated to abolish the stood, office-holding was ? was introduced Henderson. was fate It Hoke v. What its once re and was at on into the House 18, 1901, February day Committee. On following to Judiciary ferred and later, that committee, it was back favorably by reported same committee. to the on the same was recommitted day, without division it was postponed, On March 15, indefinitely vote. to Conceding Leg unanimous and apparently by purpose integrity islature that devotion to duty had if we they to must assume claim, entitled they in furtherance of bill were thought purposes As it unanimously. interests would passed unanimous assume that their it we forced is, are equally of the principles bill a unanimous approval defeat of the bill was intended to which the abrogate. decision judicial peo- and unbroken In view this acquiescence long Genera] as as in the conventions, well in constitutional ple nor for overruling I neither reason authority see Assembly, Whether decis- years. the uniform decisions seventy mere will Court, now majority rendered ion, remains to be the law of the land, accepted permanently this Court in the dawn of another day It be that seen. may of the elders.” teachings “the return IN THE SUPREME COURT. State v. Maksii. In the I if meantime, must rest in sucli my ignorance, in union with content be no wiser be, deathless dead, than nor than Gaston. purer Ruffin,

STATE v. MARSH. 1903). (Filed October Supreme Rape—Appeal. CERTIORARI— Court— supreme aWhere criminal case is decided in the court a record on false, found to be it will be restored to docket afterwards and a issued to. the record. certiorari correct Douglas Walicek, JJ., dissenting.

This was a MotioN the State this case to restore docket and for a writ of herein. certiorari Gilmer,

Robert D. and Adams & Je- Attorney-General, rome, for the State. Williams, Staclc, & Redioine & for the defendant.

Armfield ClaRic, O. J. This us case was before at last State term, Marsh, N. C., 1000: were There numerous excep- tions, none of which were considered because motion arrest of was allowed for made and the absence judgment from the indictment sent (for up record, rape), the words her will.” This was objection not taken ‘(against below. It now the indictment appears by inspection tire below, fact Judge finding thereon, those words were in fact in the indictment as found were grand tried, prisoner jury, omitted Clerk in the record. This case making up has not been us, heretofore before and the State asks for notes .He Constitution.” tbe Federal which is forbidden by Court says: Carolina the North m exception the single do what it pleases tbe may other States legislature “In all the Consti- restrained tbe unless it is expressly with such offices IN THE SUPREME COURT'. Ellington. Mial nor office not as tbe sub- tution, being regarded property contract ject of sense.” It will be observed no author- Justice cites Chief Ruffin for the him- maintained him. contents ity proposition He the “An self with office com- statement is enumerated by on mentators the law hereditaments among incorporeal And are that “most while, he they property, says therefore, of the rules them have reference regulating discharge of the duties and the convenience. promotion public commodo n are are not the They pro hence populi, they subject in the sense of full and absolute dominion property is which other recognized many only things. They far so as can be so in subject property safety interest involved in their duties.” general discharge He concedes that office be abolished. “With these may limitations “a like,” says is the sub- he, ject as from property everything corporeal incorporeal man which can earn a livelihood make And to gain. the extent of his is it private much as the salary property which land he or the horse which or he debt tills, rides, that is to him.” owing must We confess our to see how inability right can have salary any higher which stronger ground upon to rest than office. The is but an inci- salary dent to office. Chief Justice does him- express self his with usual force and clearness when he that offices says “are not the subject of that sense absolute dominion which is other recognized many things,” and yet, “to extent of his salary, as much as private property the land he tills, the horse which or the he debt rides, to him.” he When concedes that the office owing such concession abolished, weakens very the force of greatly conclusion. his v. Williams, J., Mills C., Pearson,

Case Details

Case Name: Mial v. Ellington.

Court Name: Supreme Court of North Carolina

Date Published: Dec 1, 1903

Citation: 46 S.E. 961

Court Abbreviation: N.C.